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CASE NO.: Appeal (crl.)  998 of 1999

PETITIONER: KHUMAN SINGH & ORS.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT: 24/11/2004

BENCH: B.P.SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T                                                     

B.P.SINGH, J.

       There are seven appellants in this Appeal who have impugned the  judgement and order of the High Court of Madhya Pradesh at Jabalpur dated  2nd September, 1998 in Criminal Appeal No.1035 of 1989. The High Court  by its impugned judgement and order dismissed the appeal preferred by them  and upheld the judgement and order of the First Additional Sessions Judge,  Sehore in Sessions Trial No. 74 of 1988 finding them guilty of the offence  punishable under Section 302 read with Section 149 IPC and                                                  ...2/-

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sentencing them to imprisonment for life. The appellants were also found  guilty of the offences under Sections 147 and 323 read with Section 149 IPC  and sentenced to undergo one year, and six months, rigorous imprisonment  respectively for those offences.

       The facts of the case  are that in connection with the Flag Ceremony  performed near the Hanuman Temple, the villagers had assembled from  different villages. They danced the whole night in celebration. The party of  the complainant was dancing to the beating of drums of one Nanla (PW 5)  while the appellants and others were dancing in a separate group. It appears  that inadvertently the stick of Khuman Singh, Appellant No.2 hit PW5 on his  face. There was protest from Nanla, and it appears that an altercation  followed the protest. However, the groups dispersed thereafter. Rayla (since  deceased) had intervened to pacify the parties.                                                 ...3/-   

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Thereafter the villagers took ’prasad’ and started to proceed towards their  respective villages. According to the prosecution, the complainant party was  chased by the appellants who caught hold of Nanla (PW 5). There was protest  from deceased Rayla and others. It appears that appellant No.1 gave a lathi  blow to Bair Singh (PW 1). The chase continued and ultimately in the field of  Samadh Miyan, Rayla, the deceased was over-powered and was assaulted  with lathi and stones. It is the case of the prosecution that some of the accused  trampled on his body as a result of which he died on the spot.

       The First Information Report was lodged by PW1 and after  investigation the appellants were put on trial. There is considerable evidence  on record to prove the participation of the appellants. The evidence also

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establishes the genesis and manner of occurrence as stated by the prosecution.                                                                                          ...4/-

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       Learned Counsel for the appellants submitted that even if the  prosecution case is accepted to be true, the nature of injuries caused, the  weapons used, the genesis of the occurrence and the trivial dispute which  gave rise to the occurrence, belie the case of the prosecution that the  appellants intended to cause the death of the deceased. She submits that none  of the injuries caused was by itself sufficient in the ordinary course of nature  to cause death, and at best death resulted on account of the unintended injury  to the liver caused by fracture of a rib bone which punctured the liver.  According to her, injury to the liver, which appears to be the cause of the  death, was not intended by the appellants. According to her, the offence made  out may be one under Section 326 or Section 324 IPC.

       On the other hand, Counsel for the State submitted that a large  number of injuries were inflicted on the deceased by the appellants. The                                                 ...5/-

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appellants must have known that such large number of injuries caused by  them would result in the death of the victim in the ordinary course of nature.  He, therefore, submitted that the case clearly comes under Section 302 IPC.  To be more precise he submits that the case would fall under Section 300  "thirdly" IPC.  

       We have gone through the evidence on record and have noticed the  features of the case. Firstly, the occurrence has its genesis in a trivial  matter  namely the unintended hitting of Nanla (PW5) by the stick of appellant No.2  when they were dancing at the festival. There was some protest giving rise to  exchange of abuses and altercation but the matter rested there. Thereafter, the  parties took ’prasad’ and proceeded to their respective villages. It is thus  apparent that what happened was not premeditated and the appellants had not  come particularly prepared for the incident. Secondly,                                                 ...6/-                                          

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while returning to their respective villages the appellants caught hold of Nanla  (PW5) but there was intervention by the deceased Rayla. This is what made  Rayla the target of the appellants. The injuries inflicted were by lathis carried  by the appellants and some of them picked up stones which they found lying  nearby. Thirdly, the medical evidence discloses that the following injuries  were caused :-         1.      Swelling of the size of 3 cm. x 3 cm.           on  the outer margin of the eye and                         right side of  the face.          2.      Swelling of the dia of 4 cm. on the                      head bone of left parietal bone.         3.      A spreading swelling over the left of            the nostril and on the Mazalary bone            of the left  face.          4.     Spreading swelling in the region of                      the left collar bone.          5.     In the half upper portion of the left            arm  spreading swelling.                                                 ...7/-

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        6.     Contusion spread around the niple of             left side of the chest.          7.     Swelling in the region of the ribs                       Nos.10, 11, 12 of the back bone and                      right side of the back.  

       The internal examination disclosed that though there was clotting of  blood under the upper skin on the left parietal bone there was no underlying  fracture. The 11th and 12th ribs which had been fractured had entered the  liver. The deceased had suffered several fracture of bones but none of them  appear to be such as would have caused his death in the ordinary course of  nature.

       The doctor who had conducted the postmortem examination was  examined as PW10 but in the course of his deposition he did not state that he  had found any injury which was sufficient in the ordinary course of nature to  cause death. His opinion appears                                                 ...8/-

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to be that "death has been caused due to the  injuries caused on his person and  following the damage of the liver and profuse bleeding". In the absence of  any clear medical opinion we have examined the nature of injuries inflicted  on the deceased as disclosed by the evidence on record. From the external and  internal injuries found, we have come to the conclusion that  it was the injury  caused to the liver resulting in profuse bleeding which caused the death. If the  liver had not been damaged, perhaps death would not have resulted. We say  so because there is no clear medical opinion on this aspect. The question then  is whether in this state of the evidence on record, the case is covered by  Section 300  "thirdly" IPC, that is to say, whether the appellants committed  the act with the intention of causing bodily injury to the deceased and the  bodily injury intended to be inflicted was sufficient in the ordinary course of  nature to cause death. In Virsa Singh Versus State of Punjab, AIR                                                 ...9/-

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1958 SC 465, this Court considered the facts and held that the prosecution  must prove the following facts before it could bring the case under Section  300 "thirdly".          "First, it must establish, quite objectively that a bodily injury is  present;         Secondly, the nature of the injury must be proved; These are purely  objective investigations.         Thirdly, it must be proved that there was an intention to inflict that  particular bodily injury, that is to say, that it was not accidental or  unintentional, or that some other kind of injury was intended.         Once these three elements are proved to be present, the enquiry  proceeds further and,          Fourthly, it must be proved that the injury of the type just described  made up of the three elements set out above is sufficient to cause death in the  ordinary course of nature. This part of the enquiry is purely objective and  inferential and has nothing to do with the intention of the offender."                                                 ...10/-                         -10-

       In Anda Versus State of Rajasthan (AIR 1966 SC 151 the same  principle has been reiterated in the following words :-         "The third clause views the matter from a general stand point. It  speaks of an intention to cause bodily injury which is sufficient in the  ordinary course of nature to cause death. The sufficiency is the high

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probability of death in the ordinary way of nature and when this exists and  death ensues and the causing of such injury is intended the offence is murder.  Sometimes the nature of the weapon used, sometimes the part of the body on  which the injury is caused, and sometimes both are relevant. The determinant  factor is the intentional injury which must be sufficient to cause death in the  ordinary course of nature. If the intended injury cannot be said to be sufficient  in the ordinary course of nature to cause death, that is to say, the probability  of death is not so high, the offence does not fall within murder but within                                                 ...11/-

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culpable homicide not amounting to murder or something less."             In the same judgement this Court cautioned that no case can be an authority  on facts. This is always a question of fact as to whether accused shared a  particular knowledge or intent. One must look for a common intention, that is  to say, some prior concert and what that common intention is. One must look  for the requisite ingredient that the injuries which were intended to be caused  were sufficient to cause death in the ordinary course of nature, and whether  the accused possessed the knowledge that the injuries they were intending to  cause were sufficient in the ordinary course of nature to cause death.

       Keeping these principles in mind and applying them to the facts of  this case we find that the occurrence took place suddenly. There was no                                                 ...12/-

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premeditation on the part of the appellants and quarrel really arose from a  trivial issue. The parties had danced all night and nothing untoward had  happened except this small incident. Thereafter they proceeded towards their  respective villages. It is not the case of the prosecution that the appellants  were armed with deadly weapons. Some of them were carrying lathis, as are  usually carried by the tribals in that part of the State, and had not made any  special preparation for the assault. Some others had just picked up stones  when the deceased was overpowered, and assaulted him. It is, no doubt, true  that they assaulted the deceased in such a manner that the deceased suffered  several fractures, but the injury which caused the death of the deceased was  the one suffered by him on account of the rib bone puncturing the liver. We  are convinced that this injury was not intended by the appellants, and the  injury suffered by the deceased on his liver was at best accidental. We  therefore, hold that                                                 ...13/-

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Section 300 "thirdly" IPC is not attracted, and it cannot be said that the  appellants intended to cause any injury to the liver which perhaps proved  fatal. There is no evidence to suggest that any of the other injuries suffered by  him was sufficient to cause death in ordinary course of nature.

       The question then is under which provision of the IPC the appellants  should be punished. Counsel for the State submits that even if the case does  not fall under Section 300 "thirdly" IPC it would certainly fall under Section  304 Part II IPC. Even if we say that the appellants had no intention to cause  death they certainly knew that such bodily injury was likely to cause death.  He, therefore, submits that even if the appellants may not be found guilty of  culpable homicide amounting to murder, they are certainly guilty of culpable  homicide not amounting to murder punishable under Section 304 Part II IPC.                                                 ...14/-

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       Having considered all the relevant facts we are satisfied that the  appellants are guilty of the offence punishable under Section 304 Part II IPC.  We, therefore, set aside their conviction under Section 302 IPC and instead  convict them under Section 304 Part II IPC and sentence them to 5 years  rigorous imprisonment. Learned Counsel for the appellant submitted that the  offence will fall under Section 326 IPC and not under Section 304 Part II IPC  because the injury caused by the appellants resulted in fracture of the bones. It  is true that in such border line cases it is possible to hold either way.  However, in the facts and circumstances of this case the conviction should  appropriately be one under Section 304 Part II IPC. In any event, it would  make no difference to the sentence, having regard to the facts of the case.

       In the circumstances, this appeal is partly allowed and the conviction  of the appellants under Section 302 IPC is set aside and they are convicted                                                 ...15/-

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under Section 304 Part II IPC and sentenced to five years rigorous  imprisonment each. We are informed that the appellant No.1, Khuman Singh,  s/o Nahar Singh, appellant No.2 Khuman Singh, s/o Bair Singh, Appellant  No.4 Bhai Singh, s/o Phool Singh and Appellant No.6 Dhanna, s/o Par Singh  have remained in custody through out and have served out about 11 years of  the sentence, while the remaining appellants were granted bail by the High  Court after sometime. In this appeal this Court granted bail to all the  appellants. Their bail bonds are cancelled and the authorities are directed to  take them into custody if they have not served out the sentence of five years  awarded by this Court, to serve out the remainder of the sentence.